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1996-41930-Minutes for Meeting September 04,1996 Recorded 11/12/19960156-0269 MINUTES DESCHUTES COUNTY BOARD OF COMMISSION,F AI ' —t -m A'.1 11: L4 Wednesday, September 4, 199�i'-'= Chair Nancy Pope Schlangen called the Board of County-,pmmissioners meeting to order at 10:04 a.m. County Commissioners present were Nancy Pope Schlangen, Barry H. Slaughter, and Robert L. Nipper. Also in attendance were Mike Maier, County Administrator; Rick Isham, County Counsel; George Read, Community Development Director; Larry Rice, Public Works Director; Wayne Sorenson, Planner; James Lewis, Planner; Ralph Delamarter, Librarian; Sue Stoneman, Public Relations Specialist; Ron Mekler, 9-1-1 Director; Charles Trachsel, Interim 9-1-1 Director; Ed Pecoraro, Planner; Bruce White, Assistant County Counsel; Marty Wynne, Finance Director; Damian Syrnyk, Planner; Kevin Harrison, Planner; and Catherine Morrow, Planner. CONVENE AS THE GOVERNING BODY OF 4-H/EXTENSION COUNTY SERVICE DISTRICT 1. APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS FOR 4-H/EXTENSION COUNTY SERVICE DISTRICT Before the Governing Body was approval of weekly accounts payable vouchers for 4-H/Extension County Service District in the amount of $196.18. NIPPER: I move approval subject to review. SLAUGHTER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES CONVENE AS THE GOVERNING BODY OF 9-1-1 COUNTY SERVICE DISTRICT 2. APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS FOR 9-1-1 COUNTY SERVICE DISTRICT Before the Governing Body was approval of the weekly accounts payable vouchers for the 9-1-1 County Service District in the amount of $2,232.77. SLAUGHTER: NIPPER: VOTE: MINUTES 1 I move approval upon review. Second. SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES SEPTEMBER 4, 1996 'IF Ed ' w o ,. 1996 U '? 19,9 0156-0210 CONVENE AS THE GOVERNING BODY OF REDMOND LIBRARY COUNTY SERVICE DISTRICT 3. APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS FOR REDMOND LIBRARY COUNTY SERVICE DISTRICT Before the Governing Body was approval of the weekly accounts payable vouchers for Redmond Library County Service District in the amount of $98,774.77. SLAUGHTER: I move approval upon review. NIPPER: I'll second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES CONVENE AS THE GOVERNING BODY OF THE BEND LIBRARY COUNTY SERVICE DISTRICT 4. APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS FOR BEND LIBRARY COUNTY SERVICE DISTRICT Before the Board was approval of the weekly accounts payable vouchers for the Bend Library County Service District in the amount of $15,922.02. SLAUGHTER: I move approval upon review. NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES CONVENE AS THE SUNRIVER LIBRARY COUNTY SERVICE DISTRICT 5. APPROVAL OF A TEMPORARY USE PERMIT FOR THE SUNRIVER LIBRARY COUNTY SERVICE DISTRICT Before the Governing Body was approval of a temporary use permit for the Sunriver Library County Service District. SLAUGHTER: I move signature on the temporary use permit. NIPPER: I'll second it. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES MINUTES 2 SEPTEMBER 4, 1996 6. 015&-0211 RECONVENE AS DESCHUTES COUNTY BOARD OF COMMISSIONERS • • • • _ ) a _�_,�� _ , s • 414 _ • _ • Before the Board was a public hearing on appeal A-96-12 for Cosgrave, an appeal of the County Planning Commission's decision. Chair Schlangen reviewed the procedures to be followed for the public hearing. She stated the staff would give a report, applicants would testify on the record, opponents would then be allowed to testify, then rebuttal would be made by the applicants. Chair Schlangen asked for disclosure from the commissioners for any prehearing contact in this matter. Commissioners Schlangen and Slaughter reported having no prehearing contact. Commissioner Nipper stated he had a phone conversation with Mr. Cosgrave about 8 or 9 months ago regarding a problem with the Community Development Department. Chair Schlangen also asked audience members if they felt any member of the Board of Commissioners should be challenged with bias or inability to make a fair decision in this matter. No challenge was made from the public. Damian Syrnyk reported there were maps available and a site plan which shows the subject property and surrounding properties. The property was located at 63225 Lookout Drive. There was a transcript of the April 11, 1996, Planning Commission Hearing. Damian stated this was an appeal of the Deschutes County Planning Commission's decision on a variance decision. The proposed variance had been requested in the wildlife combining zone. Damian summarized the decision of the Planning Commission which was different than the Hearing Officer's. The Planning Commission heard this issue de novo. Bruce White reiterated that this was a hearing on the record and that no new testimony would be allowed outside the record. Bruce reviewed criteria with the Board. Chair Schlangen opened the public hearing. John Cosgrave, 19547 Sunshine Way, Bend, applicant, testified that he was appealing the decision made by the Planning Commission. He stated he would point out that the record very clearly supports the Hearings officers's decision to grant the variance. He felt the Hearings Officer had performed a very orderly and objective view of the facts, and applied them MINUTES 3 SEPTEMBER 4, 1996 0156-0212 directly to the criteria that was the basis for granting or denying a variance application. He stated he would also show how the Planning Commission varied from the standards. He stated the County also made mistakes and this had been a burden to them. He felt the main issue was deer winter range. He stated he was never told by the County that this property was subject to this zoning. He stated he was told of this oversight regarding the zoning after he had purchased the property and was attempting to partition it. He felt the County should take responsibility for their error and allow the partition. He was then told he could apply for a variance. He felt he had been lied to and lied about. He felt there had been inappropriate staff comments, exparte contacts, pseudo secret meetings and only one side of the story being heard. He stated the exparte contacts had never been acknowledged in the public hearing or the content divulged. The Planning Commissioner decided to review this issue and it was scheduled for the December 28, 1995, Planning Commission Meeting. The planning staff was notified, ARLU DeCO was told, Oregon Department of Fish & Wildlife was told, but the applicant was never informed. The applicant was informed after the meeting that the matter had been brought up for review. The Planning Department admitted that this had been an oversight after the fact. He reported in his letter of January 10, 1996, that Catherine Morrow had a private telephone conversation with Howard Paine expressing her disappointment in the decision. Mr. Cosgrave requested the Board review letter of December 28, 1995, from Howard Paine to the Deschutes County Planning Department. He felt the felt there was confusion as to what the scope of the Planning Commission's review should have been. He stated he was invited to attend the March 14, 1996, meeting where the issue was to be discussed. At that meeting the Planning Commission decided they would not hear from the applicants on this point. He was prepared to argue that the ordinance was vague and that it did allow for the hearing to be heard on the record, as the Planning Commission had unanimously decided to do at the December 28, 1995, meeting. Prior to this meeting, he stated he had expressed to staff that a de novo hearing added to the unfair burden on him financially and in his ability to present his case because his primary expert witness, Dr. Main, had taken a full time position in Florida and would be unavailable to testify. He stated this became even more important when it was discovered that Dr. Main's testimony was not available as the tape had disappeared. MINUTES 4 SEPTEMBER 4, 1996 0156-0213 Mr. Cosgrave pointed out what he felt were errors in the basic findings section of the decision. He pointed out the site description states that the topography slopes upward to a point 20 feet above street grade. He stated hill slopes rather steeply to over 200 feet above Johnson Road. He reported the size of the neighboring acreage was inaccurate. The surrounding property size ranges from 2.5 to 40 acres in size. Mr. Cosgrave also pointed out a map of the Tumalo Deer Winter Range. He felt the conclusionary findings were flawed and the record showed that he had satisfied all variance criteria. Mr. Cosgrave stated there would have been no difficulty if the County had not provided incorrect zoning information. He stated he would not have purchased the property or applied for a variance to partition. He reported the Planning Commissioner defines the difficulty as arising solely out of the size of the parcel which was 20 acres and the 40 -acre minimum standard for cluster developments. He stated their sole justification for denying this criteria was that there were other properties in the Wildlife Overlay Zone under 40 - acres, therefore it was not unique to the Cosgrave's property. Mr. Cosgrave stated his property was surrounded by properties that were smaller than 40 -acres. He stated that did not solely create the difficulty and that was not the only attribute that created this parcels uniqueness. He reported this site was unique because it was the only parcel under 40 - acres that could meet the variance criteria for an area variance that was over 20 -acres, in the RR -10 Zone, created before 1979, and unable to be combined with other property that was under the same ownership. He reported the other things that made this parcel unique was that it was on the periphria of the deer winter range, it was one-half mile from the Urban Growth Boundary, it was already surrounded by intense development, and exceptionally poor deer winter habitat. He stated that this property was unique and the difficulty arising from the false zoning information was unique. Mr. Cosgrave requested the Board review his letter of January 10, 1996, describing the circumstances that led to the offer and subsequent purchase of the property. Mr. Cosgrave stated the appraisals showed this property as being zoned RR-10/LM with no mentioned of the WA Zone. He also got a copy of a previous appraisal which showed the same zoning with no WA. He stated he also visited the Planning Division regarding the zoning and there was no mention of WA. He stated he had received a letter from George Read stating the zoning was RR- 10/LM with no mention of the WA Zone. He stated that it was only after they were the official owners and attempting to partition the property was it discovered by a planner that MINUTES 5 SEPTEMBER 4, 1996 0156—M4 that there was a WA overlay Zone on this property. The planner discovered it by referencing a mylar map that was in some back office in the Planning Division. He stated he was shocked and angered by being misled by the agency that was suppose to help them making an informed purchased. He felt the mistake was unintentional. Mr. Cosgrave stated that at the time the site was purchased, he felt they pursued due diligence and did all that any reasonable person would do to ascertain the zoning of this parcel. He also noted that all of the experts confirmed the erroneous zoning information. Mr. Cosgrave stated the Board treated the entire Tumalo deer winter range as one resource site and did not make distinctions that some areas were more significant than others. He stated they also did not make distinctions that every single acre in the entire deer winter range was as important as every other one. Mr. Cosgrave state the Planning Commission looked at this issue as it pertained to the concept of zoning generally. He felt the Planning Commission was saying that a variance, which must be judged on it's own individual impacts and merits, should never be allowed. Mr. Cosgrave stated that if this was the case, why should a variance ever be allowed to be applied for. Mr. Cosgrave gave a description of this property by saying that it was a steep exposed hill, separated on the periphery of the Tumalo deer winter range, surrounded by development, with no water, no southern exposure, poor cover and poor forage resources. He felt the science speaks for itself, but the Planning Commission decision did not address any of this by saying that these issues need not be resolved. Mr. Cosgrave stated they had asked the Planning Commission to apply the facts of the record to the law as it existed in the variance criteria. He stated that in reviewing the record, the Board would see that every argument against this application had been responded to with facts or shown to be irrelevant to the case. Bruce Coblentz testified in support of Mr. Cosgrave's application for a variance. He stated Mr. Cosgrave's property had very thin soil, it was very steep, and very little vegetation. The top of butte had been devastated. He reported he had inspected the property and the deer use the property a little but not very much. He stated there was some evidence of deer movement through the property. He felt this was a piece of property, which was inside the Tumalo deer MINUTES 6 SEPTEMBER 4, 1996 0156-0215 winter range, but of such poor quality that there was very little use of it by the deer. Bob Lovlien testified on behalf of Mr. Cosgrave. He emphasized that, if this variance was approved, it would be for one additional home site which would still preserve 16 acres of open space. Mr. Lovlien stated a variance could be allowed in a overlay zone. He stated that if you went back to listen to the tape on the Hearings Officer's hearing, you would find that Mr. Eck states that criterias 1, 2, and 3 had been met. He stated that staff agreed with that. He urged the Board to look carefully at the precedent study done in the record for Mr. Eck, done by Brian Meece. The conclusion was that this was the only piece of property that this variance criteria would apply to in Deschutes County. He also asked the Board to review the final reports done by Dr. Main and Dr. Coblentz as they specifically try to identify the comprehensive plan and ordinance criteria and how this would be impact by applying those criteria. He urged the Board to uphold the Hearings Officer's decision as he felt it was supported by the record, the staff and their comments at the time of the original hearing. Mr. Cosgrave felt he should not be held responsible if he followed the rules and receive a variance, and then someone else that he doesn't know or had no control over happens to do something that was similar. Chair Schlangen asked for testimony from the opponents. Howard Paine testified in opposition. He referenced the letter he had written to the Planning Department of December 28, 1995. It was stated that Catherine Morrow had called him to call this issue up for review and that did not happen. Howard Paine submitted a letter from Bill Boyer, ARLU DeCo. Mr. Paine requested the Board to uphold the Planning Commission decision and deny this appeal. Ted Weise, Oregon Department of Fish & Wildlife, testified in opposition to this variance. His department had a great concern regarding this case. He referred to the GIS map of the deer winter range. He felt the deer winter range had already been compromised which made the remaining winter range that much more important. He pointed out it was the cumulative impacts and cumulative areas that make the deer winter range and it shouldn't be cut apart piece meal. Chair Schlangen asked for rebuttal from the applicant. MINUTES 7 SEPTEMBER 4, 1996 7. Mr. Cosgrave stated in rebuttal that he never said who called who, only that there was a phone call between Catherine Morrow and Mr. Paine. He reported the map now says it is in the WA Zone which had been added since their application. He stated this was approved by the hearing officer, but the Planning Commission overturned the decision. Private expense study was done by Brian Meece. The valuation was based on an appraisal of $100,000 and the appraisal was based on the best use of the property being separated into two 10 -acre building sites. This property was worth $47,000 less in 1995 dollars if it was only one buildable site. He felt this variance should be judged on the criteria that existed today. He reiterated that land divisions are allowed in the deer winter range if you start out with a 40 -acre minimum. Mr. Cosgrave requested a waiver of fee of about $800 to $900. He felt he was entitled to the waiver of the fee because they paid the fees. The people who appealed this had not paid an appeal fee and felt they should not have to pay one. Bob Lovlien stated Brian Meece wanted him to clarify the number of parcels. He stated there were no questions regarding the number of parcels. Damian stated he had separated out the documents referred to in the hearing today. There being no further testimony, Chair Schlangen closed the public hearing. The Board Meeting will be continued to Thursday, September 5, 1996, at 1:30 p.m. to make a decision on this issue. APPROVAL OF OUT-OF-STATE TRAVEL FOR DENNIS PERKINS Before the Board was approval of out-of-state travel for Dennis Perkins. SLAUGHTER: I would recommend that we approve out-of-state travel. NIPPER: I'm going to second that. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES MINUTES 8 SEPTEMBER 4, 1996 E -p 9. 0155-0211 SIGNATURE OF ACCEPTANCE OF DEDICATIONS FOR 27TH STREET AND METOLIUS ROAD TO DESCHUTES COUNTY FOR GORDON & ANNE SWOPE Before the Board was signature of an acceptance of dedication for 27th Street and Metolium Road to Deschutes County for Gordon & Anne Swope. NIPPER: I move signature of acceptance of Dedication for 27th Street and Metolius Road to Deschutes county for Gordon & Anne Swope. SLAUGHTER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES APPOINTMENT OF ELMER MC DANIEL TO THE DESCHUTES BASIN RESOURCE COMMITTEE Before the Board was appointment of Elmer McDanial to the Deschutes Basin Resource Committee. SLAUGHTER: I move appointment of Elmer McDaniel to the Deschutes Basin Resource Committee. NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES Before the Board was signature of Order No. 96-092, assigning the name of Wells Road. SLAUGHTER: I move signature of Order No. 96-092, assigning the name of Wells Road. NIPPER: I'll second it. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES 11. SIGNATURE OF RESOLUTION NO 96-115, APPOINTING BARRY H SLAUGHTER AS ACTING CHAIR Before the Board was signature of Resolution No. 96-115, appointing Barry H. Slaughter as Acting Chair in Nancy Pope MINUTES 9 SEPTEMBER 4, 1996 0156-0218 Schlangen's absence from September 9, 1996 to September 27, 1996. NIPPER: I'll move signature of Resolution No. 96-115, appointing Barry H. Slaughter as acting chair. SLAUGHTER: I'll second that. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES .i •; :� ;�OV•• • Before the Board was signature of Liquor License renewals for Deschutes River Trout House, Crain Prairie Resort, Black Butte General Store, Hot Peppers, Terrenbonne Mini Market, Cinco De Mayo, La Siesta Cafe, Alfalfa Store, Broken Top Restaurant, and Ponderosa Pizza. NIPPER: I'll move signature on liquor licenses on the above named establishments. SLAUGHTER: I'll second it. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES 13. APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS Before the Board was approval of the weekly accounts payable vouchers in the amount of $768,550.98. SLAUGHTER: I move approval upon review. NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES 14. AUTHORIZATION TO SUBMIT SIDEWALK GRANT APPLICATION TO THE NATE FOR LA PINE Before the Board was authorization to submit a sidewalk grant application to the State for La Pine. MINUTES 10 SEPTEMBER 41 1996 0156-0219 Larry Rice reported this application has been reviewed by the sidewalk committee. Larry reviewed the grant application with the Board. The County grant amount would be $32,000 and the State grant amount was $56,000 with the county matching 20% of that ($9,000). No action was taken on this item. By consensus the Board requested that Larry Rice submit the grant application. DATED this 4th day of September, 1996, by the Deschutes County Board of Commissioners. /� >-� / Barry! Slaughter, Commissioner ATT T: Recording Secretary MINUTES 11 SEPTEMBER 4, 1996 L. Nipper, ComiKiisioner